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Civil Petition for Special Leave to Appeal No. K‑125 of 1975, decided on 4th November 1975.

(On appeal from the judgment and order of the Sind Service Tribunal, Karachi, dated 10‑7‑1975 in Appeal No. 151 of 1974)

------Art. 178(3)‑Civil service‑Appointment to‑‑Respondents un trained teachers having their salaries fixed in time scale as notified in Provincial Gazette‑‑‑Notification not drawing any distinction between trained and untrained teachers‑ subsequent notification entitling untrained teachers only to a fixed pay and denying them advantage of progressive grade pay, held, violative of provisions of Art. 178(3) and on no discoverable principle could they be refused grade pay to their disadvantage by an executive fiat.

-----Litigation against employees‑Duties and responsibilities of Government.‑[Civil services].

Courts expect the Government to be the noblest of litigants and that they would not engage in litigation in vain much less against its own employees in the instant case the matter was covered by express provision of the Constitution and the amount involved was trivial. Any attempt to avoid justice being done on a technical plea, unless any high principle is involved should he avoided.

Usman Ghani Rashid, Assistant Advocate-General (Sind) instructed by Noor Ahmad Noori, Advocate-on-Record for Petition.

Nemo for Respondents.

Date of hearing : 4th November 1975.

The thirty‑six respondents herein entered service as Senior Vernacular teachers during tile year 1957‑58, They were untrained and their salary was then fixed in the tune scale of Rs. 115‑5‑180/7‑‑215 as notified in the West Pakistan Gazette, dated the 12th June 1963. This notification did not draw any distinction between trained teachers and untrained S. V. teachers. However, by a subsequent notification issued on 5‑1‑1965 the salary of untrained S. V. teachers was fixed at Rs. 115 per month. Thus the respondents were denied the advantage of progressive grade pay. Accordingly. the respondents were directed by order dated 24‑9‑1970 made lay petitioner No. 3 to refund the amount overdrawn by them under the original notification of the 12th June 1963 in the time scale as aforesaid.

Aggrieved by that order the respondents moved in appeal the Sind Service Tribunal, Karachi for setting aside the order of the petitioner No. 3 herein. The Tribunal vide order dated 10‑7‑1975 accepted the appeal and set aside the order of the petitioner Rio. 3 herein and has held them entitled to tie grade pay in force at the time of their entry in service.

The petitioners who include the Province of Sind now seek leave to appeal under Article 212(3) of the Constitution, under which an appeal lies "only if the Supreme Court, being satisfied that the case involves a substantial question of law of public importance."

Mr. Usman Ghani Rashid, Assistant Advocate‑General, Sind urged the following two points in support of the petition :

(i) that even, if it be assumed that the notification of 5‑1‑1965 did not apply retrospectively so as to oblige the respondents to refund the amount overdrawn during the period anterior to the notification of 5-1‑1965, the respondents were in my event governed by the fresh notification its from the date and that therefore the Tribunal was wrong to hold that the respondents having entered service prior to the issuance of that notification could not suffer reduction in their salary under the fresh notification ; and

(ii) that in any cage, the Tribunal was wrong in having granted redress to all the 36 respondents particularly when by an earlier order the Tribunal head allowed the objection against the joint appeal by all the 36 respondents and allowed the appeal to proceed only in respect of Muhammad Bachal Jalbani, respondent No. 24 herein.

We have beard the learned counsel in support of the first ground and we do not find any substance in it. It is not denied that the respondents had entered service as S. V. teachers at a time when no distinction was observed between trained and untrained teachers and therefore their pay was validly fixed and paid in accordance with the time scale then applicable to them under the notification of 12th June 1963. On no discoverable principle they could by an executive fiat be refused their grade pay to their disadvantage. The notification of 1965 was issued at a time when the 1962 Constitution hold the field which inter alia had expressly guaranteed the salaries of civil servants. See Article 198(3) of that Constitution.

As to the second ground, if we may say so with due respect we are rather surprised at the objection taken on behalf of the Government. Courts expect the Government to be the noblest of litigants and would not engage in litigation in vain much less against its own employees. In the instant case the matter was covered by express provision of the Constitution and the amount involved was trivial. Any attempt to avoid justice being done on a technical plea, unless any high principle is involved, should be avoided].

However, that may be there is no question of law of general importance within the meaning of Article 212(3) of the Constitution to call for any interference by this Court.

The petition is dismissed.

Petition dismissed.

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